Criminal Appeal No. 1164 of 2005. Case: Sunder Singh Vs State of Uttaranchal. Supreme Court (India)
| Case Number | Criminal Appeal No. 1164 of 2005 |
| Judges | V.S. Sirpurkar and A.K. Patnaik, JJ. |
| Issue | Indian Penal Code - Sections 302, 307 and 436; Criminal Procedure Code - Sections 162, 164, 313 |
| Judgement Date | September 16, 2010 |
| Court | Supreme Court (India) |
Judgment:
V.S. Sirpurkar, J.
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Appellant herein challenges the judgment of the High Court affirming the judgment passed by the Sessions Court. The Sessions Judge convicted the appellant/accused Sunder Singh for offences under Sections 302, 307 and 436, Indian Penal Code (IPC). While he was awarded the death sentence along with a fine of Rs.5,000/- and in default to suffer further rigorous imprisonment for one year, he was given the punishment of seven years along with fine of Rs. 5,000/- and in default to suffer further rigorous imprisonment for one year separately on the other two counts.
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The incident in this case had taken place on 30.6.1989 in village Mahargheti, Patwari Circle Dangoli in the newly formed District Bageshwar (which was part of District Almora at the time of incident). In this ghastly incident, Pratap Singh, his wife Nandi Devi, his elder son Balwant Singh (aged about 28 years), another son Prem Singh (aged about 19 years), daughter Kamla (aged about 16 years) lost their lives while wife of Balwant Singh, namely, Vimla Devi (PW-1) sustained grievous burn injuries. Five victims who lost their lives including Balwant Singh were roasted alive and died either on the spot or while being taken to the hospital or in the hospital. Balwant Singh, however, was almost beheaded while he also suffered the burn injuries. The prosecution alleged that this incident took place at about 10 p.m. when all the victims were taking their dinner in the ground floor room of their house. The appellant/accused came there with jerry can containing petrol and burning torch and threw the petrol in the room and after setting fire by torch, he shut the door of the room. Though Balwant Singh was in flames he managed to come out of the room by opening the door. However, as soon as he came out of the room, the accused who was still waiting there gave him a sword blow on the neck because of which he fell down dead out side the house. The other five family members who sustained severe burns also died barring Vimla Devi who alone survived. Nandi Devi died on the way to the Primary Health Centre at Baijnath while Pratap Singh also died there itself. Kamla and Prem Singh died in the District hospital, Almora later on, where they were shifted from Baijnath.
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Informant Kheem Singh (PW-2) prepared a written report and handed over to the Circle Patwari, Hyat Singh (PW-13). In fact Hyat Singh (PW-13) came almost immediately after the incident and so did the other witnesses like Chanar Singh (PW-3) and Rewadhar (PW-4). At the time when they reached the spot almost simultaneously, Pratap Singh was alive, who told these witnesses that accused Sunder Singh had burned them by throwing petrol from jerry can and by torching the house thereafter. Even Vimla Devi (PW-1), the wife of Balwant Singh told Hyat Singh (PW-13) about the incident and also about the attack on Balwant Singh by the accused. Hyat Singh (PW-13) started the investigation. He inspected the burnt house and the spot where Balwant Singh's body was lying. He found that Balwant Singh was dead and had suffered a serious injury on his neck. The other injured barring Balwant Singh were sent first to the Primary Health Centre, Baijnath. Nandi Devi, however, died even before reaching the Primary Health Centre, Baijnath, while Pratap Singh is said to have died after reaching the Health Centre. Dr. K.C. Joshi (PW-12) examined Vimla Devi (PW-1) and noted the injuries suffered by her, so also Kamla and Prem Singh were examined by him, and he noted their injuries in the medical certificates (Exhibits Ka-9, Ka-10 and Ka-11). Thereafter, the injured were sent to District Hospital, Almora in view of the seriousness of their injuries. When the three injured were at District Hospital, Almora, the dying declarations of Prem Singh and Vimla Devi (PW-1) were recorded on 1.7.1989 by Narender Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal, District Almora. Before this, Hyat Singh (PW-13) had completed his inspection of all the spots and had attached burnt radio, damaged plastic gallons, burnt breads and cut pieces of can from the scene of offence. He also found a cover of the sword (described as Khol') and also a pistol which had two bullets in it. He also held the inquest on the dead body of Balwant Singh and thereafter on the body of Pratap Singh and Nandi Devi. These bodies were sent for post mortem. In the District Hospital, Almora, Prem Singh died on 1.7.1989 itself while Kamla died later on after the treatment. Vimla Devi (PW-1), however, miraculously survived. The inquests and the post mortem on the dead bodies of Kamla and Prem Singh were also conducted later on by the doctors. All the five dead bodies had suffered extensive burn injuries, almost to the extent of 70% or 80%. Vimla Devi (PW-1), however, miraculously escaped and survived, though she had also suffered 70% of the burn injuries. After the preliminary investigation was completed by Hyat Singh (PW-13), the same was entrusted to C.B.C.I.D. and Inspector K.R. Tamta (PW-14), who completed the remaining formalities of the investigation. The accused was absconding. He was found only in July, 2002 after a lapse of 12 years. It was then that the matter was committed to Sessions on the basis of the chargesheet already filed.
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The chargesheet was for the offences under Sections 302, 307 and 436, IPC. The Sessions Judge framed charges. Fourteen witnesses were examined in support of the charges including Vimla Devi (PW-1) who was the injured eye witness. Kheem Singh (PW-2), who was the author of the First Information Report (FIR), was examined to prove the same. Chanar Singh (PW-3) and Rewadhar (PW-4) were the witnesses who reached the spot almost immediately after the incident. They were examined as the panch witnesses. Dan Singh (PW-5) also acted as a panch on the inquest, so also Daya Krishna (PW-7) and Ramesh Singh Rotella (PW-8) were examined to prove the inquest panchnamas on the dead bodies. Narender Singh Patel (PW-9), Sub-Divisional Magistrate, Baramandal, District Almora was examined to prove the dying declarations of Vimla Devi (PW-1) and Prem Singh, which was recorded by him on 1.7.1989. Dr. N.D. Punetha (PW-6), Dr. H.G.S. Manral (PW-10) and Dr. Nanda Vallabh Sharma (PW-11) were the doctors conducting the post mortem, while Dr. K.C. Joshi (PW-12) was the doctor who had examined Vimla Devi (PW-1) and Prem Singh and had issued medical certificates to them. Hyat Singh (PW-13), the investigating Patwari and Inspector K.R. Tamta (PW-14) were examined as the investigating witnesses.
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The accused abjured his guilt. He raised the defence of false implication on account of the enmity due to land. However, learned Sessions Judge came to the conclusion on the basis of the evidence of Vimla Devi (PW-1) and the dying declaration of Prem Singh and the other substantive evidence that it was accused Sunder Singh who had torched the ground floor room on the fateful day resulting in the victims being roasted alive. It was also held that the prosecution had proved that the accused had dealt a sword blow on Balwant Singh almost beheading him and on that count proceeded to convict the accused and awarded the sentences which have already been mentioned.
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Since the death sentence was ordered there was a death reference made in the High Court. The accused also filed an appeal challenging his conviction. The High Court came to the conclusion that the Sessions Judge was right in convicting the accused. The High Court also endorsed the opinion of the Sessions Judge that this was a rarest of rare case and, therefore, affirmed the death sentence awarded to the accused by the Sessions Judge. The judgment affirmed by the High Court has now fallen for our consideration.
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Shri Y.P. Singh who was appointed as Amicus Curiae urged before us that it could not be said that it was the accused who was the perpetrator of this crime. According to the learned Counsel, the prosecution was not able to prove the guilt. He contended that the evidence of Vimla Devi (PW-1) could not be accepted as there were inherent pitfalls in her evidence. Firstly, she was an interested witness and secondly, her ability to see at night at 10 O'clock was suspect. We have been taken through the whole evidence to show that there were contradictions and material omissions in her evidence. The learned Counsel further argued that the so-called dying declaration by Prem Singh was also a suspect document and was not creditworthy. He pointed out that the said dying declaration of Prem Singh did not have the endorsement of the doctor about Prem Singh being in fit condition to make a dying declaration.
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Lastly, learned Counsel suggested that this could not be said to be a rarest of rare case and the High Court has erred in affirming the death sentence.
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As against this, the learned Counsel appearing on behalf of the State supported the judgment and contended that the evidence of Vimla Devi (PW-1) was extremely important and credible and she was herself an injured witness. He pointed out that being a relative and having lost her near and dear ones she is not likely to screen the real offender. She had all the opportunity to see and since the accused was the real uncle of her husband, there was no question of any mis-identity also. He pointed out that the evidence is extremely natural and she had not tried to rope in other persons. It was further pointed out that there was nothing to suspect the dying declaration of Prem Singh. As regards the absence of the endorsement of the doctor, the learned Counsel suggested that it cannot be forgotten that the said dying declaration is recorded by an independent witness. He also pointed out that the victim was fully conscious and had survived after the dying declaration for substantial time which would suggest that he was completely conscious at the time when the dying declaration was recorded. It was further argued by the...
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